People v. Miller

• Decision Date: 29 September 1960
• Docket Number: Cr. 1556
• Citation: 8 Cal.Rptr. 91,185 Cal.App.2d 59
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Marvin James MILLER, Defendant and Appellant.

Page 91

8 Cal.Rptr. 91

185 Cal.App.2d 59

PEOPLE of the State of California, Plaintiff and Respondent, v. Marvin James MILLER, Defendant and Appellant.

Cr. 1556.

District Court of Appeal, Fourth District, California.

Sept. 29, 1960.

Rehearing Denied Oct. 24, 1960.

Hearing Denied Nov. 23, 1960.

Theo. G. Krumm, San Bernardino, for appellant.

Stanley E. Mosk, Atty.Gen., and Norman H. Sokolow, Deputy Atty. Gen., for respondent.

COUGHLIN, Justice

The defendant was charged with, tried by a jury for, and convicted of the offense of arson, a violation of Section 448a of the Penal Code. His motion for a new trial was denied. Judgment of imprisonment in the State Prison followed. From the order denying this motion and from the judgment of imprisonment the defendant appeals, contending that the evidence is insufficient to support the verdict of the jury and that the trial court committed errors which deprived him of a fair trial.

Sufficiency Of The Evidence.

'The court on appeal 'will not attempt to determine the weight of the evidence, but will decide only whether upon the face of the evidence it can be held that sufficient facts could not have been found by the jury to warrant the inference of guilt. For it is the function of the jury in the first instance, and of the trial court after verdict, to determine what facts are established by the evidence, and before the verdict of the jury, which has been approved by the trial court, can be set aside on appeal upon the ground' of insufficiency of the evidence, 'it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below. The determination of a charge in a criminal case involves proof of two distinct propositions: First, that the offense charged was committed, and second, that it was perpetrated by the person or persons accused thereof. * * * We must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence, and then determine whether such facts are sufficient to support the verdict.'' People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778, 779; People v. Daugherty, 40 Cal.2d 876, 885, 256 P.2d 911; People v. Massey, 151 Cal.App.2d 623, 650, 312 P.2d 365; People v. Mazza, 135 Cal.App.2d 587, 596, 287 P.2d 798.

Counsel for defendant acknowledges the limitations thus imposed upon the Appellate Court in considering their contention that the evidence in the case at bar is insufficient to sustain the verdict, however, they contend that the evidence relied upon for a conviction in this case is not of that substantial nature required by law. People v. Schafer, 198 Cal. 717, 721, 247 P. 576; People v. McClennegen, 195 Cal. 445, 449-450, 234 P. 91; People v. Wilkins, 141 Cal.App.2d 557, 560, 297 P.2d 42. On the other hand, in presenting their contention they have succumbed to the temptation to argue the weight of the evidence and the credibility of the witnesses. A consideration of these factors is without the scope of Appellate review. Estate of Teel, 25 Cal.2d 520, 526, 154 P.2d 384; Blank v. Coffin, 20 Cal.2d 457, 461, 126 P.2d 868; People v. Treggs, 171 Cal.App.2d 537, 545, 341 P.2d 342; People v. Mazza, supra, 135 Cal.App.2d 587, 596, 287 P.2d 798; People v. Maxey, 134 Cal.App.2d 611, 618, 286 P.2d 840.

On November 15, 1958, a fire of incendiary origin caused substantial damage to the buildings, equipment and stock of the Terri Lee Doll Manufacturing Plant in Apple Valley, California. Evidence of seven different fires, at widely separated places within the premises, and the use of some kind of accelerant to produce them supported the conclusion that they had been set. There is no contention that the evidence is not sufficient to support the implied finding of the jury that the offense of arson had been committed. Rather, the contention is directed to the proposition that there is no substantial evidence to prove that the defendant was the culprit.

For two years before the fire the defendant had known Violet Gradwohl, who was the president and principal stockholder of six corporations, generally referred to as the Terri Lee Enterprises, through which the doll factory was owned and operated. During that time she sought his advice as a financial consultant; considered employing him as general manager; had him assist the bookkeeper; counselled with him respecting the acquisition of a building in Nevada; discussed financing problems with him; borrowed money from him; obtained his analysis of the corporation's books; and had him audit one of the factory's accounts. On the day before the fire, Mrs. Gradwohl paid the defendant $1,000 by way of a cashier's check, which she testified was given to him for accounting services. The defendant became quite active in the Terri Lee Enterprises; at one time offered to buy into them for $150,000, but later withdrew the offer; on one occasion loaned Mrs. Gradwohl $2,000; on several occasions cashed checks for her; analyzed the company's books and told her that she had lost $100,000 by embezzlement; urged her to obtain an audit; accompanied her to the office of the Small Business Administration from which one of the corporations had made a loan, where he indicated his interest in trying to help Mrs. Gradwohl with her financial problems and expressed a hope that he might purchase an interest in the business; and came to the plant about twice a week during the months of September to November of 1958.

The financial affairs of the 'Terri Lee' corporations at the time of the fire were in a serious condition. Miller appeared to be familiar with the situation and testified that the enterprise was about $1,000,000 in debt. The loan from the Small Business Administration was delinquent, with a balance of approximately $230,000. One of the corporations owed $20,000 in wages. The production manager had not been paid any salary for ten months, and the sum of $5,400 was due him. A bank was undertaking foreclosure proceedings to collect $4,500.

At the time of the fire the stock in the doll plant was insured for $211,000. Two days previously Mrs. Gradwohl had contacted her insurance agent and asked to have this insurance increased to $240,000. She testified that this request grew out of a recent inventory check which showed that she was underinsured.

On the morning of the fire, i. e., November 15, 1958, at the plant, a fireman observed flames coming out of a five gallon can marked 'Wizard'; after the flames were extinguished, the can had an odor of a petroleum product; another fireman saw a round five gallon Franklin Floor Cleaner can on the floor in an area where there was an oil-type substance on the floor which had an odor of a petroleum product. Previously on this morning, at about 2 a. m., a man identified as the defendant, appeared at a Richfield Service Station in Victorville; stated that a friend of his had run out of gasoline; and asked the service station attendant for a can in which he could put some gasoline and take it to his friend. The attendant, who made the identification in question, procured a round five-gallon Franklin Floor Cleaner can, which looked like the can later found at the scene of the fire, and filled it with four gallons of gasoline. The defendant placed the can on the floor of the passenger's side of the front portion of the automobile he was driving, and left.

The Franklin Floor Cleaner can obtained from the plant on the morning of the fire contained a small amount of a liquid substance which was analyzed and determined to be a premium grade gasoline.

A few days after the fire a deputy sheriff noted the presence of imprints on the front floor mat of defendant's automobile on the passenger's side, consisting of three arcs. By measurement these arc stains could have been made by the bottom of the floor cleaner can found at the fire; and, in the opinion of a criminalist who examined and tested them, were caused by a petroleum derivative.

Two days after the fire, in the presence of the service station attendant and from information furnished by him, a deputy sheriff made a sketch of the person described by the attendant as the man who purchased the gasoline placed in the floor cleaner can. This sketch was admitted as an exhibit.

The defendant attacks the credibility of the service station attendant in an attempt to establish that the testimony given by him does not constitute substantial evidence. The detailed examination of this witness, both on direct and cross, produced the result which such an examination obtains with respect to the testimony of many witnesses. Seeming inaccuracies and inconsistencies appear, but these do not entirely destroy the credibility of the witness as a matter of law. The issue remains as one for the jury to determine.

'In order to sustain a conviction it is not necessary that the identification of the defendant as the perpetrator of the crime be positive or in a manner free from inconsistencies. It is the function of the jury to pass upon the strength or weakness of the identification and the uncertainties of the witnesses in giving their testimony. Unless the evidence of identify is so weak as to constitute no evidence at all, this court cannot set aside the decision of the trial court.' People v. Shaheen, 120 Cal.App.2d 629, 637, 261 P.2d 752, 756; People v. Treggs, 171 Cal.App.2d 546, 550, 341 P.2d 347; People v. Mazza, supra, 135 Cal.App.2d 587, 598, 287 P.2d 798.

The defendant contends that he did not purchase any gasoline as related by the service station attendant; attributes the mat stains to a gasoline can used to carry gasoline for a power lawn mower and a child's motor car; and claims that he was in Las Vegas on the night of the fire. On the day before, i. e., November 14th, he was with Mrs. Gradwohl at the plant. It was the afternoon of this day that she gave him the $1,000 cashier's check. According to his...